Like indigent criminal defendants and low income individuals with family law or housing problems, potential plaintiffs in civil tort actions can suffer from their inability to pay for attorneys and their lack of familiarity with the court system. The goal of the tort system is to provide remedy for harm. Historically, the formal right to such legal redress for injury did not ensure the practical right to access to the courts for those without the funds to pay for legal services, but in the last half of the twentieth century, U.S. courts have placed a higher priority on guaranteeing real access and greater equality between parties in tort cases.
Now, however, tort reform efforts nationwide may result in individuals' decreased access to the courts for redress of grievances because of limits on recovery and allocation of legal costs. Tort reform proponents have three major goals: (1) to limit juries' ability to determine compensation for injured persons; (2) to limit punitive damage awards; and (3) to restrict the attorney contingency fee system that ensures citizens without money access to the courts. These goals rest on the perception that a "litigation explosion" of frivolous and unfounded claims is increasing business and insurance costs while providing windfalls for individual plaintiffs. It is assumed that lowering levels for possible recovery and increasing legal costs for plaintiffs will counteract this "litigation explosion".
However, the measures proposed for tort reform exacerbate the inequalities present in the reality of litigation, in which individual citizens are often fighting large, wealthy corporations with extensive litigation budgets. Those who already have less access to the legal system, such as women and others of lower incomes, will suffer the most, particularly from limits on non- economic damages. According to Samuel R. Gross and Kent D. Syverud ("Getting to No: A Study of Settlement Negotiations and the Selection of Cases for Trial," 90 Mich. L. Rev. 319 ), a California study of settlements under the current rules demonstrated unequal bargaining power between plaintiffs and defendants in which risk-averse plaintiffs settled cases for much less than their value.
One of the arguments in favor of tort reform is that litigation results in higher insurance premiums, and, most particularly, medical costs. However, medical malpractice is, in fact, one area of tort where access to the courts is already extremely limited. A 1990 public health study, Harvard Medical Practice Study, estimated that only one in fifteen actual cases of medical malpractice resulting in serious injury or death in New York state was litigated. Thus, payment on malpractice insurance claims is minimal at best. According to Deborah R. Hensler ("Reading the Tax Litigation Tea Leaves: What's Going On in the Civil Liability System?" in The Justice System Journal 16(2), 1993), only 10 per cent of those injured in medical malpractice or products cases attempt to assert legal claims, while 50 per cent make claims in automobile injuries. In addition, because Alaska does not require medical malpractice insurance, the possibility of recovering for malpractice is already limited in this state.
Alaska HB 158, which was passed in the last legislative session but vetoed by Governor Knowles, would narrow the private citizen's ability to redress grievances, making the average individual even less powerful on the uneven playing field of the courts. In particular, Section 13, by instituting a more stringent form of the English rule, under which the loser pays the attorney fees of the winner, would restrict the ability to sue to those able to take the risk of bearing attorney costs. Alaska already has a modified form of the English rule under which the loser pays attorney fees, but the amount of fees is set by the court. (If the recovery after trial is less than the last offer, the prevailing party is also liable for attorney fees.) Other provisions in the proposed measure would have restricted children from suing tort feasors after two years, regardless of their age at the time of harm. Currently the law allows suit until two years after the age of majority.
Recognizing the need for a review of the civil justice system in the wake of HB 158, the Governor created the Task Force on Civil Justice Reform. The task force includes representatives of the legal and business communities and members of the public. Attorneys on the panel represent a cross- section of interest including plaintiffs, industry, consumers and insurers. The commission, which will begin work in September, will review the volume and type of civil cases filed in Alaska courts, including damages awarded. It will look at tort reform measures elsewhere in the nation, analyze the recent Alaska proposals as well as the existing laws and examine possibilities for improvement. Recommendations, including any proposed statutes, will be submitted by December 16, 1996.
Lisa Rieger is an assistant professor with the Justice Center.